S. 981, THE REGULATORY IMPROVEMENT ACT OF 1998: THE MOST RECENT ATTEMPT TO DEVELOP A SOLUTION IN...

S. 981, THE REGULATORY IMPROVEMENT ACT OF 1998: THE MOST RECENT ATTEMPT TODEVELOP A SOLUTION IN SEARCH OF A PROBLEMAuthor(s): DANIEL COHENSource: Administrative Law Review, Vol. 50, No. 4 (Fall 1998), pp. 699-721Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/40709924 .

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ARTICLE

S. 981, THE REGULATORY IMPROVEMENT ACT OF 1998: THE MOST RECENT ATTEMPT TO DEVELOP A SOLUTION IN SEARCH OF A

PROBLEM Daniel Cohen*

Introduction 700 I. Legislative Enactments of the 104th Congress 702

A. The Paperwork Reduction Act of 1995 702 B. The Unfunded Mandates Reform Act of 1995 703 C. The Small Business Regulatory Enforcement Fairness Act

of 1996 705 1. Congressional Review of Agency Regulations 705 2. Regulatory Flexibility Act 707 3. Provisions to Assist Small Entities 710

II. S. 981, The Regulatory Improvement Act of 1998 712 A. Key Provisions of the Legislation 713

1. Cost/Benefit Analysis and Risk Assessment 713 2. Judicial Review 713 3. Review of Existing Regulations 714

a. Review of Economically Significant Rules 714 b. Review of Rules Under the Regulatory Flexibility

Act 715 4. Unfunded Mandates Reform Act 716

B. Analysis 716 Conclusion 720

* Senior Counsel for Regulation, U.S. Department of Commerce. This paper was originally presented at the 1997 Fall Meeting of the American Bar Association (ABA) Sec- tion of Administrative Law and Regulatory Practice. The views expressed herein are those of Mr. Cohen and do not represent the views of the Department of Commerce, the United States Government, or the ABA. The author is grateful for the time and comments provided in the preparation of this paper by Phil Harter, Jeff Lubbers and Neil Eisner.

699



700 ADMINISTRATIVE LAW REVIEW [50:4

Introduction

Over the past several years, "regulatory reform" has been an issue of rhetorical consensus among politicians of both political parties. There appears to be agreement that regulations often impose ill-conceived and unnecessary burdens. During the 104th Congress, an unprecedented number of regulatory reform proposals were introduced and considered in both the House of Representatives and the Senate. Several were enacted into law. These bills, nominally designed to make the regulatory system more rational, were sponsored by leading members of both parties. Moreover, during this same period, President Clinton undertook his own regulatory reform initiative through which he touted the accomplishment of eliminat- ing or redrafting tens of thousands of pages of existing regulations.

One would assume that, with this level of action at both ends of Penn- sylvania Avenue, the "problems" with the regulatory system requiring regulatory reform would be clearly articulated and based on some empirical data. However, such an assumption would be wrong. In fact, the rhetoric of regulatory reform is based on anecdotal evidence and wide-ranging estimates of the costs of the regulatory system, with most such estimates paying little or no attention to the benefits achieved and making a series of untested, usually politically motivated, analytical assumptions.1

This is the case because there is nothing really wrong with the regulatory system as it exists today. Agency regulatory actions are based on good data, good science, and solid analysis of both. Further, for the most part, these regulatory actions represent an exercise of good judgment by an

1. See U.S. GENERAL ACCOUNTING OFFICE, Regulatory Burden: Measurement Chal- lenges and Concerns Raised by Selected Companies 3 (1996). In that report, the General Accounting Office (GAO) concluded, among other things, that "measuring the incremental impact of all federal regulations on individual companies, although perhaps not impossible, is an extremely difficult endeavor. Therefore, decisionmakers using studies that attempt to measure total current regulatory costs to guide public policy need to be aware of those studies' conceptual and methodological underpinnings." Further, "[although nearly all of the companies participating in the study initially told GAO they could develop a complete list of applicable [burdensome] regulations, ultimately, none did so." Id. at 4; see also Draft Report to Congress on the Costs and Benefits of Federal Regulations, 62 Fed. Reg. 39,352 (1997), an Office of Management and Budget publication, Benefits of Federal Regulation, mandated by the Omnibus Consolidated Appropriations Act of 1997, Pub. L. No. 104-208, tit. VI, § 645(a), 110 Stat. 3009-366 (requiring Director of OMB to submit to Congress a report on the costs and benefits of federal regulatory programs). The Draft Report states that "aggregate estimates of the costs and benefits of regulation offer little guidance on how to improve the efficiency, effectiveness, or soundness of the existing body of regulation." 62 Fed. Reg. at 39,353. The OMB draft report also disputes existing estimates of the total costs of regulation and provides its own estimate. The OMB draft report was published for public comment on July 22, 1997. The final report was submitted to Congress on Septem- ber 30, 1997.



1998] THE REGULATORY IMPROVEMENT ACT OF 1998 701

agency to flesh out the difficult details of general legislative enactments. Indeed, the criticism of agencies is often directed at areas where they have no discretion under the statute. Certainly, mistakes are made, but they are the exception rather than the rule. It is, however, easy to deride this system when the hard choices are in fact made to the detriment of a particular con- stituency.

Reality notwithstanding, the 104th Congress saw the enactment of several pieces of legislation meant to accomplish reform of the regulatory system. These laws were enacted to fix the perceived problems with the regulatory system and to ensure that agencies make good decisions and impose as little burden as possible. In the 105th Congress, Senators Thomp- son and Levin, along with several prominent cosponsors,2 introduced a new proposal, S. 981, the Regulatory Improvement Act of 1998,3 to further reform the regulatory system. A cost/benefit analysis of the recently enacted "reform" laws would lead to a conclusion that, rather than improve the system, these measures have served to complicate and make more expen- sive the process of promulgating regulations without justifying the benefits achieved. Moreover, in light of the passage of these new laws during the 104th Congress, a question is raised as to whether there is any need for the additional "regulatory reform" contained in S. 981.

Part I of this article discusses the legislative enactments of the 104th Congress, specifically detailing the Paperwork Reduction Act of 1995, the Unfunded Mandates Reform Act of 1995, and the Small Business Regula- tory Enforcement Fairness Act of 1996. Part II discusses the key provisions of the Regulatory Improvement Act of 1998 (S. 981), and compares the proposed legislation to the legislation already passed. Part HI reaches two conclusions. First, additional legislation is not necessary because existing law already imposes essentially the same requirements as S. 981. Next, that without any of the these legislative enactments, agencies were already performing the analyses the various laws require.

2. The other sponsors of S. 981 were Senators Robb, Roth, Rockefeller, Glenn, Abra- ham, and Stevens.

3. This Bill was not enacted during the 104th or 105th Congress.




I. LEGISLATIVE ENACTMENTS OF THE 1 04TH CONGRESS

A. The Paperwork Reduction Act of 199 f

The Paperwork Reduction Act was originally enacted in 1980.5 This Act established, among other things, a process for the Office of Information and Regulatory Affairs (OIRA) within the Office of Management and Budget (OMB) to review and clear all federal government information collection requests. This review ensures that the information collection requests have practical utility, are not duplicative of information otherwise available to the federal government, and impose the least possible burden.

On May 22, 1995, the President signed the Paperwork Reduction Act of 1995 (revised PRA).6 The revised PRA restated and expanded upon the existing Paperwork Reduction Acts of 1980 and 1986 (existing PRA). The requirements of the revised PRA took effect on October 1, 1995.

The revised PRA made a number of substantive changes to the review and clearance procedures of the existing PRA. Included among these was a requirement that agencies seek public comment concerning proposed col- lections of information through a sixty-day notice to the public prior to submission to OIRA for clearance.7 The revised PRA also sought to over- turn the Supreme Court's decision in Dole v. United Steelworkers? by making explicit that third-party disclosure and certification requirements were subject to the Act's review and clearance procedures.9 Additionally, Congress sought to encourage litigation under the revised PRA by including a provision known as the "public protection clause."10 Under this provision an agency must inform respondents that the agency may not conduct or sponsor, and the respondent is not required to respond to, a request for information unless that request displays a valid approval, known as an OMB control number. Further the public protection clause states that the respondent cannot be held liable for failing to provide information sought

4. Pub. L. No. 104-13, 109 Stat. 163 (1995) (codified at 44 U.S.C. § 3501 (Supp. I 1995)).

5. Pub. L. No. 96-51 1, 94 Stat. 2812 (codified as amended at 44 U.S.C. §§ 3501-3520 (1994)). The original law was amended in 1986 by the Paperwork Reduction Reauthorization Act of 1986, Pub. L. No. 99-500, and Pub. L. No. 99-591, a corrected version of Pub. L. No. 99-500.

6. For a more complete description of the important changes embodied in the revised PRA, see Jeffrey S. Lubbers, Paperwork Redux: The (Stronger) Paperwork Reduction Act of 1995, 49 Admin. L. Rev. 1 1 1 (1997).

7. 44 U.S.C. § 3506(c)(2)(A) (Supp. 1 1995). 8. 494 U.S. 26 (1990). 9. 44 U.S.C. § 3502(3)(A) (Supp. I 1995).

10. Id. §3512 (Supp. 1 1995).




by an agency if it should, but does not, display a valid OMB control number and the agency fails to inform the respondent of their right not to respond in such a case. Finally, the revised PRA established a government- wide goal for the reduction of paperwork burden by at least ten percent in each of Fiscal Years 1996 and 1997, and reduction by at least five percent in each of Fiscal Years 1998 through 200 1.11

B. The Unfunded Mandates Reform Act ofl995n

On March 22, 1995, the President signed the Unfunded Mandates Re- form Act of 1995 (UMRA).13 The UMRA contains definitions of key terms. A "[f)ederal mandate"14 can be either a "[fjederal intergovernmental mandate" or a "[fjederal private sector mandate." A "[fjederal intergovernmental mandate"15 includes "any provision in legislation, statute, or regulation that . . . would impose an enforceable duty on State, local, or tribal governments" with two exceptions.16 One of those exceptions, a duty arising from participation in a voluntary federal program, itself has an exception. Specifically, a duty arising from participation in a voluntary federal program would be a "[f]ederal intergovernmental mandate" if it in- volves

any provision in legislation, statute, or regulation that relates to a then-existing federal program under which $500,000,000 or more is provided annually to State, local, or tribal governments under entitlement authority, if the provision . . . would increase the stringency of conditions of assistance to State, local, or tribal government ... or . . . would place caps upon, or otherwise decrease, the Federal Government's responsibility to provide funding to State, local, or tribal governments under the program; and ... the State, local, or tribal governments that participate in the Federal program lack authority under the program to amend their financial or programmatic responsibilities to continue providing required services that are affected by the legislation, statute, or regulation.17

11. Id. § 3505(a)(l) (Supp. I 1995). According to OIRA, the Internal Revenue Service accounts for approximately 80% of the total paperwork burden cleared under the PRA. As such, absent significant amendment to the tax laws, or elimination of the remainder of the federal government's information collection, it is mathematically impossible to achieve what is in itself an unrealistic goal.

12. Pub. L. No. 104-4, 109 Stat. 48 (codified at 2 U.S.C. § 1501 (Supp. 1 1995)). 13. For a more complete description of the Unfunded Mandates Reform Act, see Dan-

iel E. Troy, The Unfunded Mandates Reform Act of 1995, 49 Admin. L. Rev. 139 (1997). 14. 2 U.S.C. § 658(6) (Supp. I 1995). 15. Id. § 658(5) (Supp. I 1995). 16. First, the definition excepts a condition of Federal assistance." Next, the defini-

tion excludes "a duty arising from participation in a voluntary Federal program, except [in certain enumerated circumstances]." Id. § 658(5)(A)(i)(I)-(II) (Supp. 1 1995).

17. Id. § 658(5)(B) (Supp. I 1995).




A "[F]ederal private sector mandate"18 includes "any provision in legislation, statute, or regulation that . . . would impose an enforceable duty upon the private sector except ... a condition of Federal assistance; or ... a duty arising from participation in a voluntary Federal program."

Title II of the UMRA requires federal agencies, "unless otherwise pro- hibited by law, [to] assess the effects of Federal regulatory actions on State, local, and tribal governments and on the private sector."19 This requirement applies to any proposed rule, or any final rule for which a proposed rule was published, "that includes any Federal mandate that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector," of $100 million or more in any one year (adjusted annually for inflation).20 For any rulemaking exceeding this threshold, the agency undertaking the action must prepare a written statement.21 The statement must contain:

(1) an identification of the provision of Federal law under which the rule is being promulgated;

(2) a qualitative and quantitative assessment of the anticipated costs and benefits of the Federal mandate, including the costs and benefits to State, local, or tribal governments or the private sector, as well as the effect of the Federal mandate on health, safety, and the natural environment . . .;

(3) estimates by the agency [of the costs of complying with the federal mandate and] any disproportionate budgetary effects of the Federal mandate upon any particular regions of the nation [urban or rural] or other types of communities, or particular segments of the private sector; [and]

(4) estimates by the agency of the effect on the national economy . . . ?2

Further, the UMRA requires that an agency imposing a federal mandate "identify and consider a reasonable number of regulatory alternatives and from those alternatives select the least costly, most cost-effective or least burdensome alternative that achieves the objectives of the rule."23 There are two exceptions to these otherwise mandatory "decisional criteria;" when the agency head publishes an explanation as to why one of the three alternatives was not selected or when selecting one of those three alternatives would be inconsistent with law.24

Title II of UMRA provides for judicial review of agency action. Spe- cifically, agency compliance or noncompliance with the provisions of

18. /rf.§ 658(7) (Supp. I 1995). 19. A/. § 1531 (Supp. I 1995). 20. 2 U.S.C. § 1532(a) (Supp. I 1995). 21. A/.§1532(a)(Supp.I1995). 22. Id. 23. Id. § 1535(a) (Supp. I 1995). 24. Id. § 1535(b) (Supp. I 1995).



1 998] THE REGULA TORY IMPROVEMENT ACT OF 1998 705

UMRA requiring a written statement are subject to court review only under title 5, section 706(1), pursuant to which a court can compel agency action unlawfully withheld or unreasonably delayed.25 In any judicial review of an agency rule for which a written statement is required, under any other law, the inadequacy or failure to prepare such a statement, including the failure to prepare any estimate, analysis, statement, or description, is not to be used as a basis for staying, enjoining, invalidating, or otherwise affect- ing the agency rule.26 However, any information generated as part of the written statement that is part of the rulemaking record for purposes of judicial review under any other law may be considered part of the record for the court's review conducted under that other law.27

C. The Small Business Regulatory Enforcement Fairness Act ofl9962%

1. Congressional Review of Agency Regulations

On March 29, 1996, President Clinton signed Public Law 104-121, the Contract with America Advancement Act of 1996. Title II of this law, entitled the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA),29 among other things, added a new chapter 8 to title 5 of the United States Code, establishing a requirement for congressional review of agency regulations.30 Under this review procedure, beginning March 29, 1996, all federal agencies, including independent agencies, are required to submit each "rule" to the Congress and to the GAO before it can take effect.31 The statute provides Congress the opportunity to enact a joint resolution disapproving an agency's rule.32

Section 804 defines "rule" as meaning the same as the Administrative Procedure Act (APA) definition in section 551, with minor exceptions.33

25. Id. § 1571(a)(2) (Supp. I 1995). 26. 2 U.S.C. § 1571(a)(3) (Supp. I 1995). 27. Id. § 1571(a)(4) (Supp. I 1995). 28. Contract with America Advancement Act of 1996, Pub. L. No. 104-121, tit. II, 1 10

Stat. 857 (codified at 5 U.S.C. § 601 (Supp. II 1996)). 29. See Thomas O. Sargentich, The Small Business Regulatory Enforcement Fairness

Act, 49 Admin. L. Rev. 123 (1997). 30. See Daniel Cohen & Peter L. Strauss, Congressional Review of Agency Regula-

tions, 49 Admin. L. Rev. 95 (1997). 31. See 5 U.S.C. § 801 (Supp. II 1996). 32. See id. § 802 (Supp. II 1996). 33. Only a limited group of rules are specifically exempted from congressional review:

(1) rules of particular applicability; (2) any rule relating to agency management or personnel; or (3) any rule of agency organization, procedure, or practice that does not substantially affect the rights or obligations of nonagency parties. Id. § 804(3) (Supp. II 1996). Further,




This is broader than rules subject to APA rulemaking procedures.34 Thus, rules governing grant programs, general statements of policy, interpretative rules, and other rules required to be published pursuant to section 552(a) but exempt from section 553 rulemaking procedures, are required to be submitted under the congressional review statute.35 For each rule, agencies must also submit: (1) a report containing a concise general statement relating to the rule and its proposed effective date; (2) a complete copy of any cost/benefit analysis of the rule; (3) information concerning the agency's actions under the Regulatory Flexibility Act and the Unfunded Mandates Reform Act; and (4) any other relevant information or requirements under any other law or Executive Order.

For major rules, defined as rules having $100 million in annual economic impact,36 congressional review is supported by GAO's preparation, within fifteen days of an agency's rule submission, of a report to each House of Congress providing its assessment of the agency's compliance with the procedural requirements of the various statutes and Executive Or- ders for which the agency must submit required information.37 With limited exceptions,38 the statute automatically delays the effectiveness of all major rules for at least sixty days.39

rules that concern monetary policy proposed or implemented by the Board of Governors of the Federal Reserve System or the Federal Open Market Committee are not considered rules for purposes of congressional review. Id. § 807 (Supp. II 1996).

34. See id. §553(1994). 35. The limited legislative history of the statute makes clear that this breadth was un-

derstood and intended. See Cong. Rec. E578 (daily ed. Apr. 19, 1996) (extended remarks of Chairman Hyde, House Judiciary Committee).

36. See 5 U.S.C. § 804(2)(A) (Supp. II 1996). 37. See id. § 801(a)(2)(A) (Supp. II 19%). The information required to be submitted

includes information on the agency's compliance with UMRA and the Regulatory Flexibil- ity Act.

38. Under section 808(1), any major rule that "establishes, modifies, opens, closes, or conducts a regulatory program for a commercial, recreational, or subsistence activity related to fishing, hunting, or camping" may become effective as determined by the agency. Id. More broadly, under section 808(2), an agency can control the effective date of "any rule which [it] for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rule issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest." Despite the fact that this language tracks ex- actly section 553(b)(3)(B) of the APA, authorizing waiver of notice-and-comment rulemaking processes, the administration appears to have taken the position that section 808(2) authorizes agencies to make any rule immediately effective on analogy to section 553(d)(3), which authorizes agencies to shorten the usual 30-day period for making legislative rules effective "for good cause found and published with the rule." Id. § 553(b)(3)(B). The administration has also opined that the language allows waiver of the delay in effectiveness in those cases where a good cause finding can be made that notice to Congress and the Con- gressional review procedures are impracticable, unnecessary, or contrary to the public interest. While the administration's positions may be sensible as a policy matter, it seems unten-




2. Regulatory Flexibility Acf°

SBREFA also amended and expanded the Regulatory Flexibility Act (RFA).41 The RFA contains analytical requirements designed to inform an agency's decisionmaking with regard to the impact of its regulations on small entities.42 Specifically, for those regulatory actions which are required to be issued pursuant to notice and comment procedures, the RFA requires preparation of initial and final Regulatory Flexibility Analyses (IRFAs & FRF As) for each proposed and final rule, respectively.43 How- ever, these analyses need not be prepared if the agency determines that the rule, if promulgated, will not have a significant economic impact on a substantial number of small entities.44 In such a case, the RFA permits certification of this determination by the agency head to the Chief Counsel for Advocacy of the Small Business Administration (SBA).45

SBREFA' s most significant amendments to the RFA resulted in the re- moval of the previously-existing prohibition on judicial review of agency compliance with the law.46 As of June 27, 1996, a small entity is entitled to seek court review of an agency's compliance with the specific procedural requirements of the RFA. A small entity may seek judicial review within

able as an interpretation of the words Congress has used. Finally, the President himself can make a rule immediately effective, if he determines by Executive Order, with written notice to Congress, that a rule is: necessary due to an imminent threat to health or safety or other emergency; necessary for the enforcement of criminal laws; necessary for national secu- rity; or issued pursuant to any statute implementing an international trade agreement. 5 U.S.C.§801(c)(Supp.II1996).

39. Non-major rules take effect in normal course, subject only to the contingency that Congress will initiate and enact a joint resolution of disapproval.

40. Pub. L. No. 96-354, 94 Stat. 1164 (codified at 5 U.S.C. § 601 (1994 & Supp. II 1996)).

41. Pub. L. No. 104-121, subtitle D, 1 10 Stat. 864 (codified at 5 U.S.C. § 601 (Supp. II 1996)).

42. Small entities are defined m the RFA as including small businesses, small organizations, and small governmental organizations. See 5 U.S.C. § 601(6) (Supp. II 1996).

43. See 5 U.S.C. §§ 603, 604 (1994 and Supp. II 1996). 44. See id. § 605(b) (Supp. II 1996). 45. See id. 46. 5 U.S.C. § 61 1 (Supp. II 1996). Section 61 l(b), prior to SBREFA, stated that any

IRFA or FRF A, and the compliance or noncompliance of an agency with the provisions of the RFA were not subject to judicial review. Section 611(a)(l), as added by SBREFA, states that:

a small entity that is adversely affected or aggrieved by final agency action is entitled to judicial review of agency compliance with the requirements of sections 601 [definitions], 604 [FRFA], 605(b) [certification that no analysis is required], 608(b) [delay in issuance of an FRFA], and 610 [periodic review of rules having a significant economic effect on a substantial number of small entities], in accordance with [5 U.S.C] chapter 7.




one year of issuance or publication of a final rule, unless another provision of law requires that a challenge to a final agency action under an enabling statute be filed in some lesser period (in which case the shorter timeframe applies). In granting relief, a court may: remand the rule to the agency and order it to comply with the RFA; defer enforcement of the rule against small entities, unless the court finds that continued enforcement of the rule is in the public interest; or order some other corrective action.47

The specific requirements for an FRF A48 were revised by SBREFA. Each FRFA must contain the following:

(1) a succinct statement of the need for, and objectives of, the rule; (2) a summary of significant issues raised by the public comments in re-

sponse to the initial regulatory flexibility analysis, the agency's re- sponse to those comments, and a statement of any changes made to the rule as a result of the comments;

(3) a description and estimate of the number of small entities to which the rule will apply or an explanation of why no such estimate is available;

(4) a description of the reporting, record-keeping, or other compliance requirements of the rule; and

(5) "a description of the steps the agency has taken to minimize the significant economic impact on small entities consistent with the stated objectives of applicable statutes, including a statement of factual, policy, and legal reasons for selecting the alternative adopted in the final rule and why each one of the other significant alternatives to the rule considered by the agency which affect the impact on small entities was rejected."

Item 5 is the most significant change in the requirements for an FRFA. Previously, an agency had only to describe each significant alternative it had considered that could minimize the significant economic impact of the rule and provide a statement why each had been rejected. Under the amended RFA, an agency must provide an explanation of why it rejected alternatives to the chosen course that merely affect the impact of the rulemaking on small entities. Further, an agency must describe the steps it has taken to minimize the significant economic impact of the alternative it has

47. See 5 U.S.C. § 611(a)(4) (Supp. II 1996). Several decisions have been rendered since judicial review of agency compliance with the RFA has been effective. See Associ- ated Fisheries of Maine v. Daley, 127 F.3d 104 (1st Cir. 1997); Southwestern Penn. Growth Alliance v. Browner, 121 F.3d 106 (3d Cir. 1997); North Carolina Fisheries Ass'n v. Daley, 16 F. Supp.2d 647 (E.D. Va. 1997); Southern Offshore Fishing Ass'n v. Daley, 995 F. Supp. 1411 (M.D. Fla. 1998); Northwest Mining Ass'n v. Babbitt, 5 F. Supp.2d 9 (D.D.C. 1998).

48. 5 U.S.C. § 604(a) (Supp. II 1996).




chosen, including factual, legal and policy reasons explaining why the agency selected the preferred alternative.

SBREFA also amended the RFA's standard for an agency justification of a certification under section 605(b), that a rule, if promulgated, will not have a significant economic impact on a substantial number of small entities. Previously, an agency was required to publish in the Federal Register, and provide to the Small Business Administration (SBA), the certification along with a "succinct statement" explaining the reasons for the certification.49 Under the amended RFA, an agency is required to publish in the Federal Register, and provide to SBA, the certification along with a statement of the factual basis for the certification.50 While there is no legislative history explaining this change, it is reasonable to assume that Congress be- lieved a "factual basis" requires greater justification for a certification than a "succinct statement." Presumably, a factual basis must be supported by some level of economic analysis, though less than a full IRFA or FRFA.

Though SBREFA did not amend the RFA's existing requirement for a periodic review of rules, it did make agency compliance with the rule review requirement judicially reviewable.51 Under the RFA, each agency is required to publish annually in the Federal Register a list of the rules that, when issued, were determined to have a significant economic impact on a substantial number of small entities which the agency will review in the succeeding twelve months.52 The list is to include a brief description of each rule and the need for and legal basis of the rule, as well as invite public comment on the rule.53 While the language of the RFA is somewhat un- clear, it appears that the goal of this review is to minimize the significant economic impact of the rule on a substantial number of small entities in a manner consistent with the stated objectives of applicable statutes. In conducting its rule review, the RFA requires that the agency consider:

(1) the continued need for the rule; (2) the nature of complaints or comments received concerning the rule

from the public; (3) the complexity of the rule; (4) the extent to which the rule overlaps, duplicates, or conflicts with

other federal rules, and to the extent feasible, with state and local government rules; and

49. 5 U.S.C. §605(1994). 50. See 5 U.S.C. § 605(b) (Supp. II 1996). 51. 5ee iV/. § 61 1 (Supp. II 1996). 52. See 5 U.S.C. § 610(c) (1994). 53. Id.




(S) the length of time since the rule has been evaluated or the degree to which technology, economic conditions, or other factors have changed in the area affected by the rule.54

3. Provisions to Assist Small Entities

For each rule or group of related rules for which an agency is required to publish an FRF A, SBREFA requires the agency to publish one or more guides to assist small entities in complying with the rule. A "Small Entity Compliance Guide" (Guide) must explain the actions a small entity is required to take to comply with the rule or group of rules. The Guide is to be written using sufficiently plain language likely to be understood by affected small entities. An agency's Guide is not subject to judicial review. How- ever, "in any civil or administrative [enforcement] action against a small entity for a [regulatory] violation ... the content of the [Guide] may be considered as evidence of the reasonableness or appropriateness of any proposed fines, penalties, or damages."55

Further, by March 29, 1997, each agency regulating the activities of small entities is required by SBREFA to have established a program for re- sponding to inquiries from small entities concerning information on, and advice about, compliance with statutes and regulations, and interpreting and applying law to specific sets of facts supplied by small entities.56 "In any civil or administrative action against a small entity, guidance given by an agency applying the law to facts provided by the small entity may be considered as evidence of the reasonableness or appropriateness of any proposed fines, penalties or damages sought against such small entity."57 By March 29, 1998, each agency subject to this requirement was to report to Congress "on the scope of [its assistance] program, the number of small entities using the program, and the achievements of the program to assist small entity compliance with agency regulations."58

SBREFA also required that, by March 29, 1997, each agency regulating the activities of small entities establish a policy or program to provide for the reduction, or waiver, under appropriate circumstances, of civil penalties for the violation of a statutory or regulatory requirement by a small entity.59 The agency may consider ability to pay in determining penalty assessment on small entities.60 Subject to certain limitations, policies or programs es-

54. Id. §610(bM1994). 55. § 212(c), 1 10 Stat. 858 (codified at 5 U.S.C. § 601 (note) (Supp. II 1996». 56. See § 213, 1 10 Stat. 858-59 (codified at 5 U.S.C. § 601 (note) (Supp. II 1996)). 57. § 213(a), 1 10 Stat. 859 (codified at 5 U.S.C. § 601 (note) (Supp. II 1996)). 58. § 213(c), 1 10 Stat. 859 (codified at 5 U.S.C. § 601 (note) (Supp. II 1996)). 59. See § 223(a), 110 Stat. 862 (codified at 5 U.S.C. § 601 (note) (Supp. II 1996)). 60. Id.



1998] THE REGULATORY IMPROVEMENT ACT OF 1998 71 1

tablished under this authority are to contain conditions and exclusions, such as requiring correction of the violation within a reasonable period, limiting application of the program to violations discovered through voluntary compliance assistance or audit programs and excluding small entities subject to multiple enforcement actions by the agency.61 Additionally, the agency may exclude from its penalty waiver or reduction program violations for willful or criminal conduct and may require a good faith effort by the small business to comply with the law.62

If, in an administrative proceeding or a civil action for a regulatory violation brought by the federal government against a small entity, the demand for penalties is substantially in excess of the judgment finally obtained by the federal government, and is unreasonable when compared with such judgment, the adjudicative officer or court is authorized under SBREFA to award the small entity fees and other expenses related to defending the case.63 This authority would not be available if the small entity committed a willful violation of law, otherwise acted in bad faith, or special circumstances make an award unjust.64 Further, attorneys fees under the Equal Access to Justice Act65 were raised from $75 to $125 per hour.66 As such, the federal government may be required to pay fees to a small entity even if successful in proving that the small entity violated the law.

An Enforcement Ombudsman (Ombudsman) was established at the SBA to be a conduit for small business comments on agency enforcement activity.67 This includes, in appropriate circumstances, the ability to refer such comments to the agency Inspector General. Additionally, Regional Small Business Regulatory Fairness Boards (Boards) were established in each SBA region.68 The Boards meet annually with the Ombudsman to advise on small business concerns related to enforcement activities of agencies, including substantiated excessive enforcement actions of agencies against small businesses. The Ombudsman is to prepare an annual report to Con- gress and affected agencies evaluating the enforcement activities of agency personnel, including rating the responsiveness to small business of the various regional and program offices of the agency.

61. See § 223(b), 1 10 Stat. 862 (codified at 5 U.S.C. § 601 (note) (Supp. II 1996)). 62. Id. 63. See § 231(a), 110 Stat. 86-263 (codified at 5 U.S.C. § 504(a)(4) (Supp. II 1996)). 64. See id. 65. Pub. L. No. 96-481, 94 Stat. 2325 (codified as amended at 5 U.S.C. § 504 (Supp. II

1996)). 66. 5 U.S.C. § 504(b)(l)(A) (Supp. II 1996). 67. See 15 U.S.C. § 657(b) (Supp. II 1996). 68. See id. § 657(c) (Supp. II 1996).




Finally, SBREFA requires that the Environmental Protection Agency, the Occupational Safety and Health Administration, and the Department of Labor convene a Small Business Advocacy Review Panel (Panel) before either publishes any IRFA.69 The Panel is to be comprised of individuals representing affected small entities. The purpose of the Panel is for the particular agency to obtain advice and recommendations from those individuals about the potential impact of the proposed rule on small entities. Where appropriate, the agency is required to modify the proposed rule, the IRFA, or the decision, on whether an IRFA is required.

II. S. 98 1 , The Regulatory Improvement Act of 1 99870 The congressional sponsors of S. 981 argue that their legislation is nec-

essary to guarantee that agencies undertake appropriate regulatory analysis leading to "smarter" regulations. They believe the bill would make the basis for agency regulatory decisions readily apparent to the regulated public. Further, the sponsors believe the rule review provisions of the legislation are essential to ensure that agencies review their existing rules to achieve greater net benefits from those rules.71

While these are each laudable goals, and ones with which I do not dis- agree as a general matter, the question is raised as to whether another regulatory reform law is necessary to ensure they are realized.

69. See § 244, 1 10 Stat. 867 (codified at 5 U.S.C. § 609 (Supp. II 1996)). 70. S. 981 was first introduced in 1997. On May 1 1, 1998, a new version of S. 981,

entitled "Regulatory Improvement Act of 1998" was introduced. See S. Rep. No. 105-188 (1998) (Report of the Senate Committee on Governmental Affairs, recommending by an 8-4 vote that the bill as amended pass). Finally, on July 22, 1998, Senators Levin and Thomp- son published in the Congressional Record an exchange of correspondence with the Director of the OMB concerning S. 981. See 144 Cong. Rec. S8806 (daily ed. July 22, 1998). The correspondence contained several amendments which the senators stated would be made to the bill when it would be considered on the Senate floor. These amendments were never made, as the bill was never considered on the Senate floor. This article analyzes the May 11, 1998 version of S. 981. No version of S. 981 was enacted into law during the 105th Congress.

71. See 143 Cong. Rec. S6742 (daily ed. June 27, 1997) (introductory statements of Senators Levin and Thompson). Similar remarks by additional co-sponsors follow those of Levin and Thompson.




A. Key Provisions of the Legislation

1. Cost/Benefit Analysis and Risk Assessment11

The bill would require an agency issuing a "major rule," defined as a rule likely to have an annual effect on the economy of $100 million in reasonably quantifiable costs, or otherwise designated as such by the Admin- istrator of OIRA, to evaluate the costs and benefits of both the proposed and final major rule, as well as of "a reasonable number of reasonable alternatives reflecting the range of regulatory options that would achieve the objective of the statute as addressed by the rulemaking." The proposal would also require an agency undertaking such a cost/benefit analysis to make a reasonable determination whether the benefits of the rule justify its costs and "whether the rule is likely to substantially achieve the rulemaking objective in a more cost effective manner or with greater net benefits than the other reasonable alternatives considered by the agency." An agency would be free to choose a regulatory option where the benefits do not justify the costs, or that is not more cost effective, or does not provide greater net benefits than other options, so long as the agency explains why it made such a choice, including identification of statutory provisions that required the agency to select the rule, and describes any reasonable alternatives considered by the agency that would be likely to provide benefits that justify the cost, while substantially achieving the rulemaking objective.

In addition, S. 981 would require agencies to conduct risk assessments of each proposed and final major rule, the primary purpose of which is to address health, safety, or environmental risk, or which results in a significant substitution risk. Moreover, the bill would establish the process for conducting a risk assessment, including the specific items to be analyzed. Finally, cost/benefit analyses and risk assessments conducted under the bill would be required to undergo independent peer review.

2. Judicial Review™

The bill seeks to limit judicial review of its required cost/benefit analysis and risk assessment to judicial review of the final rule. Specifically, the legislation would require that an analysis be part of the rulemaking record for purposes of review of a final rule, and would seek to limit judicial review of the content of an analysis or the procedural steps undertaken by the agency in preparation of an analysis. If an agency failed to perform a required cost/benefit analysis or risk assessment, make the necessary

72. This section addresses the proposed 5 U.S.C. §§ 623 and 624. 73. This section addresses the proposed 5 U.S.C. § 627.




cost/benefit determination, or provide for peer review of the analyses, a court would be obligated to remand or invalidate the rule. The bill would also allow a court to set aside an agency determination as to whether a rule is a major rule, upon a showing that the determination is arbitrary or capricious. Interestingly, a designation that a rule is a major rule, or any failure to make such a designation, by OIRA would not be judicially reviewable.

3. Review of Existing Regulations

a. Review of Economically Significant Rules74

The bill would require that every five years agencies undertake a review of their existing economically significant rules. The term "rule" would be defined pursuant to the APA' s extremely broad definition.75 An economically significant rule subject to the review requirement would one having an annual effect on the economy of $100 million or more in reasonably quantifiable costs or likely to adversely effect, in a material way, the economy or a sector of the economy. This economically significant rule review would be subject to judicial scrutiny.

The process for agency conduct of its economically significant rule review would be specifically established by the legislation. Each agency would be required to publish in the Federal Register a preliminary schedule for the review of its economically significant rules previously promulgated. The preliminary schedule would be subject to public comment for 60 days. Within 120 days of the close of the comment period on the preliminary schedule, the agency would be required to publish its final schedule. Each preliminary and final schedule would include a description of the rule, a brief explanation why it was selected for review, and a deadline for review occurring no later than five years after the date of publication of the final schedule. No later than six months after the deadline for review, the agency would be required to publish in the Federal Register its determination regarding the rule. If the agency were to determine that it should amend or repeal the rule, final agency action would be required no later

74. This section addresses the proposed 5 U.S.C. § 632. 75. This definition states that a rule is: the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of an agency and includes the approval or prescription for the future of rates, wages, corporate or financial struc- tures or reorganization thereof, prices, facilities, appliances, services or allowances therefor, or of valuations, costs, or accounting, or practices bearing on any of the foregoing.

Administrative Procedure Act, § 551(4).




than two years after the deadline for review established in the final schedule.76

In selecting which economically significant rules to review, the agency would be required to consider the extent to which: the rule could be revised to be substantially more cost-effective or to substantially increase net benefits; the rule is important relative to other rules being considered for review; and the agency has discretion under the statute authorizing the rule to modify or repeal the rule.

b. Review of Rules Under the Regulatory Flexibility Act77

In addition to the provision for review of economically significant rules, S. 981 would amend the existing process for the periodic review of rules under the RFA. Similar to the review for economically significant rules, agencies would be required every five years to describe the procedures and timetables for the review of rules issued by the agency that have or will have a significant economic impact on a substantial number of small entities. A proposed plan for such review would be submitted to OIRA and SBA. No later than sixty days after submission of the proposed plan to OIRA and SBA, the agency would be required to publish the proposed plan in the Federal Register for a sixty day public comment period. No later than 120 days after the close of the comment period, the agency would be required to submit a final plan to OIRA and SBA. Finally, no later than sixty days after submission to OIRA and SBA, the agency would be required to publish the final plan in the Federal Register.

As with the review of economically significant rules, there would be a five year deadline for the review of rules identified in the final plan. How- ever, unlike the review of economically significant rules, the RFA rule review would require that agencies publish annually a list of those rules that will be reviewed during the succeeding fiscal year. The annual list would contain a brief description of the rule and the basis for the agency's determination that the rule has, or will have, a significant economic impact on a substantial number of small entities, the need for and legal basis of each rule, and an invitation for public comment. The agency would then be required to conduct a review of the rules published on its annual list in accordance with its final plan. The agency would have eighteen months from publication of its annual list to make a determination whether the rule should be continued without change, or whether the rule should be

76. The Administrator of OIRA would be authorized to extend the deadline for final agency action by no more than one year, for good cause, and such a finding must be published in the Federal Register.

77. This section addresses the proposed amendments to 5 U.S.C. § 610.




amended or rescinded to minimize any significant impact upon a substantial number of small entities. The agency head would be authorized to extend, for one year at a time but not for more than two years total, the date for completion of the RFA rule review. An extension would be based upon a certification by the agency head that it is not feasible to complete the review within the eighteen month timeframe.

4. Unfunded Mandates Reform Actn

S. 981 contains two provisions directly related to UMRA. First, agencies would be required to develop an effective process to permit elected of- ficials of state, local, or tribal governments, or their désignées, to provide meaningful and timely input in the development of regulatory proposals that contain significant federal intergovernmental mandates. This process is to be consistent with, and presumably in addition to, an almost identical consultation process required under UMRA.

Interestingly, two differences exist in the language of the S. 981 consultation process and that in UMRA. First, the UMRA process requires agencies to consult with state, local, or tribal governments "to the extent per- mitted in law"19 while the S. 981 process is not so limited. Next, the UMRA consultation process is exempt from the Federal Advisory Com- mittee Act (FACA).80 S. 981 is silent on FACA. As such S. 981 consulta- tions would be subject to FACA.

The second S. 981 provision relating to the UMRA states that compliance with the bill's analytical requirements would constitute compliance with the requirements of two particular sections of UMRA requiring analysis of private sector mandates. The two cited UMRA provisions are the requirement for a written statement for any proposed rule including a federal mandate that may result in the expenditure of $100 million or more in any one year. Additionally, compliance with S. 981's analytical requirements would constitute compliance with UMRA's "decisional criteria" for selecting the least costly, most cost-effective, or least burdensome alternative that achieves the objective of the rule.

B. Analysis An agency undertaking the promulgation of a rule having large impacts

on the economy should analyze its proposed course of action prior to implementation. Such an analysis is necessary to allow the agency to under-

78. This section addresses the proposed 5 U.S.C. δ 623. 79. 2 U.S.C. § 1534(a) (Supp. 1 1995) (emphasis added). 80. 5 U.S.C. Appendix (1994).




stand, to the greatest extent possible, the consequences of its action and to make the basis for its decision known to the public. To act without such knowledge would bring into question the legitimacy of executive actions and be the definition of an "arbitrary or capricious" rulemaking. For these reasons, in fact, agencies have and will continue to undertake such analyses, not only for major rules, economically significant rules, or rules having a significant economic impact on a substantial number of small entities, but also for other important regulatory actions.81 As such, in a vacuum, while one might quibble with particular aspects of the bill's language, it would appear difficult to oppose S. 981's analytical requirements for major rules.

However, as described above, the revised PRA, RFA and UMRA have already established, in statute, essentially similar, judicially reviewable, analytical requirements for what will likely be the same regulatory actions subject to S. 981. Further, other general laws, such as the National Envi- ronmental Policy Act,82 agency-specific statutes,83 and Executive Orders84 have established additional analytical requirements. To lay on top of these requirements yet another analytical requirement can only lead to confusion on the part of the agency as to which requirements apply. Further, as agencies are likely to combine these analyses, protracted and unnecessary litigation is likely to ensue as courts attempt to unravel agency rulemaking re- cords in an attempt to determine whether the agency has in fact complied with the various requirements. Moreover, the incremental benefit, if any, of imposing another analytical requirement would not seem to justify these costs.

If S. 981's sponsors are merely attempting to ensure that agencies undertake serious analysis prior to promulgating a major rule, they do not need to establish in statute a new analytical requirement. An agency issu-

81. See generally The Regulatory Improvement Act of 1997: Hearings on S. 981 Be- fore the Senate Comm. on Governmental Affairs, 105th Cong. 22 (1997) (testimony of L. Nye Stevens, Director, Federal Management and Workforce Issues, General Government Division, General Accounting Office) (finding that, although agency rulemaking files were not always well organized, thereby hindering public access, agency analysis supporting its decision making was typically well documented).

82. 42 U.S.C. §§ 4321-4370d (1994). 83. See for example the Magnuson-Stevens Fishery Conservation and Management

Act, 16 U.S.C. §§ 1801-1882 (1994), and the Clean Air Act, 42 U.S.C. §§ 7401-7671q (1994).

84. See Exec. Order No. 12,866, 3 C.F.R. 638 (1994), reprinted in 5 U.S.C. § 601 (note) (1994) (Regulatory Planning and Review); Exec. Order No. 12,988, 3 C.F.R. 157 (1997), reprinted in 28 U.S.C. § 519 (Supp. I 1995) (Civil Justice Reform); Exec. Order No. 13,083, 63 Fed. Reg. 27,651 (1998) (Federalism). This Executive Order has been repealed, thereby reinstating Exec. Order No. 12,612, 3 C.F.R. 252 (1987), Federalism, which dealt with the same issues and imposed similar requirements. See Exec. Order No. 13,084, 63 Fed. Reg. 27,655 (1998) (Consultation and Coordination with Indian Tribal Governments).




ing a major rule, or for that matter any important rulemaking, shirks its analytical responsibilities at great peril and expense. The notion of "hard look" judicial review should ensure that an agency will have adequate justification for its actions and that its decision making was reasoned, whether there is a statutory requirement for it or not. As the Supreme Court made very clear in Motor Vehicle Manufacturers Ass 'n v. State Farm Insurance Co.,85 failure by an agency to provide sufficient grounds for its decision, in that case the Department of Transportation's repeal of a passenger vehicle airbag requirement, will likely lead to invalidation of the rule. Moreover, State Farm and its progeny stand for the proposition that, to demonstrate that reasoned decision making has taken place in the promulgation of a rule, there must be a substantial basis in the record for the agency's factual conclusions.86

Risk assessment in appropriate circumstances leads to better-informed decision making. However, it is not necessary, or even desirable, to conduct a risk assessment in addition to other regulatory analyses in every case of a major environmental, health, or safety rulemaking. Certainly, absent significant change in the scientific underpinnings of the action, a risk assessment should not be required at both the proposed and final rule stages. In most cases, if standard regulatory analysis currently undertaken by agencies is done properly, the information garnered in a risk assessment would be included. Further, the bill would establish one process for the conduct of risk assessments by the federal government which, in actuality, is geared toward cancer risks. Without arguing whether the bill's risk assessment process is valid with respect to cancer risks, it is clear that this process does not translate readily to risk associated with other health matters, safety, or the environment. As such, a risk assessment conducted under the bill's process may actually lead to inappropriate conclusions in these other matters.

Notions of good government suggest that an agency should periodically reassess its programs and operations to ensure that it is performing its functions in the most efficient and effective manner possible. However, the processes that would be established by this legislation to accomplish both the economically significant and RFA rule reviews is extremely procedure- laden and potentially overly broad in scope. The problem arises not so much from the terms "economically significant" or "significant economic impact on a substantial number of small entities," though those terms are likely to be the subject of court challenge, as from the breadth of the defi-

85. 463 U.S. 29 (1983). 86. See generally Mark Seidenfeld, Demystifying Deossification: Rethinking Recent

Proposals to Modify Judicial Review of Notice and Comment Rulemaking, 75 TEX. L. Rev. 483(1997).




nition of the term "rule." When an agency promulgates a regulatory action, it publishes a "rule" in the Federal Register. At that point it is a relatively simple matter to determine if that action is "major," "economically significant," or is likely to have "a significant economic impact on a substantial number of small entities." Specifically, the agency assesses whether the sum impact of the requirements implemented by that particular regulatory action equals the particular threshold at issue. However, once promulgated, those "rules" are codified along with many other "rules." The question becomes how to determine what then constitutes a "rule" for purposes of as- sessing the threshold triggering the review requirements. Specifically, de- pending upon what one considers a "rule," the Code of Federal Regulations (CFR) could be broken up into sufficiently small segments so as to never reach the threshold or, conversely, the CFR could be divided into such large portions so as to ensure that virtually every word, no matter how trivial, is subject to review. Either way, the fact that both the economically significant and RFA rule reviews would be subject to judicial review virtually ensures that the agencies will be in court defending whatever determination they make. Defending such litigation will, of necessity, divert scarce agency resources that could otherwise be used to actually review existing rules.

Further, the process for review of existing economically significant rules that would be established by this bill appears largely duplicative of both the existing requirement in the RFA to conduct a periodic review of rules having a significant economic impact on a substantial number of small entities,87 as well the revised RFA rule review process envisioned in S. 981. It is hard to imagine a rule that would meet the legislation's test for economic significance that would not also have a significant economic impact on a substantial number of small entities (though the converse is not necessarily true). As such, should S. 981 be enacted, agencies would likely be re- viewing many rules under both procedures, though on different timetables and against different analytical standards. Since the goal of both rule review requirements would presumably be ensuring rational and necessary rules, this would seem a waste of limited resources. Moreover, it is likely that agencies would be required to explain in court what actions and decisions were taken with respect to which procedure.

The provisions of S. 981 related to UMRA present interesting issues. The subtle differences in the language of the consultation requirements would create significant differences in implementation. As stated above, the UMRA consultation requirement is constrained by other legal requirements, while the process that would be established in S. 981 is not so lim-

87. 5 U.S.C. § 610 (1994). See description in Part I.C.2 above.




ited. As such, no matter what other legal strictures the agency may need to follow, S. 981 would still insist that the agency consult with state, local, or tribal governments in any instance of a federal intergovernmental mandate. The apparent tradeoff for this absolute consultation requirement is that the bill would require that the agency's action be subject to FACA. This procedural safeguard is sure to increase the agency's costs for undertaking the rulemaking and significantly extend that time it takes the agency to complete its work. In any case, the fact that the bill's consultation process is always required in the case of an intergovernmental mandate renders a nul- lity the limitations on the consultation process in UMRA.

At first blush, the language of S. 981 stating that compliance with the bill's analytical requirements would constitute compliance with the UMRA requirements for analyzing private sector mandates appear to be an attempt to harmonize two overlapping requirements. However, upon closer scrutiny it becomes obvious that they actually foster uncertainty and confusion. This is the case for two reasons. First, the requirements of the two analyses are different. Thus, the question would be raised as to whether the agency actually met its remaining obligations under UMRA by conducting only the S. 981 analysis. Second, and more important, UMRA contains a clear decisional criterion. The agency must, after conducting the UMRA analysis, select the least costly, most cost-effective, or least burdensome alternative that achieves the objective of the rule. The Senate proponents of S. 981 have steadfastly maintained that their bill does not contain any decisional criteria.88 Assuming these statements to be true, then an agency conducting an analysis under S. 981 only would be, in effect, avoiding a significant requirement of UMRA. In the alternative, this attempt at harmonization may well provide the means for a "backdoor" imposition of a decisional criterion on the S. 981 analysis.

Conclusion

The general administrative law concepts embodied in S. 981 are certainly unobjectionable. However, that is not the question. The issue is whether the requirements of the legislation benefit the regulatory process to an extent that the costs imposed would be justified. While from a parochial perspective, as administrative lawyers, the answer to that question may appear to be "yes" (new law is likely to provide us more interesting and lu- crative practices), from an objective view, the answer must be "no." There is very little required by S. 981 that the agencies are not already doing or that is not already required by RFA, UMRA, revised PRA, SBREFA, a va- riety of other specific statutes, Executive Orders, and case law. Moreover,

88. See statements of Senators Thompson and Levin, supra note 71 .




as we have only begun to assess the impact of the statutes enacted during the 104th Congress, it seems precipitous to enact another statute imposing essentially the same requirements. This is even more the case when one understands that the rhetoric of "regulatory reform" is simply not borne out by any empirical data. Rather, political discourse on the regulatory system is the product of anecdotal evidence, which typically fails to bear up under scrutiny, and a failure of elected leaders to take responsibility for the consequences of the laws they pass.



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S. 981, THE REGULATORY IMPROVEMENT ACT OF 1998: THE MOST RECENT ATTEMPT TO DEVELOP A SOLUTION IN...

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